The (Hidden) Risk of Opportunistic Precautions

Article — Volume 93, Issue 6

93 Va. L. Rev. 1389
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Under the conventional tort law paradigm, a tortfeasor behaves unreasonably when two conditions are met: the tortfeasor could have averted the harm by investing in cost-effective precautions and failed to do so, and other, more cost-effective precautions were not available to the victim. Torts scholarship has long argued that making such a tortfeasor responsible for the ensuing harm induces optimal care. This Article shows that by applying the conventional analysis, courts create incentives for opportunistic investments in prevention. In order to shift liability to others, parties might deliberately invest in precautions even where such investments are inefficient. The Article presents two possible solutions to the problem. By instituting a combination of (1) broader restitution rules and (2) an extended risk-utility standard, legislators and judges can reform tort law to discourage opportunistic precautions and maximize social welfare.

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  Volume 93 / Issue 6  

The (Hidden) Risk of Opportunistic Precautions

By Ehud Guttel
93 Va. L. Rev. 1389

Originalism, Popular Sovereignty, and Reverse Stare Decisis

By Kurt Lash
93 Va. L. Rev. 1437

Fair Use Harbors

By Gideon Parchomovsky & Kevin Goldman
93 Va. L. Rev. 1483

Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries

By Ross Goldman
93 Va. L. Rev. 1533